Citation NR: 9715179
Decision Date: 04/30/97 Archive Date: 05/06/97
DOCKET NO. 92-17 250 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), currently evaluated as 30 percent
disabling.
REPRESENTATION
Appellant represented by: Nettie C. Blume, Attorney at
Law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. A. Willett, Associate Counsel
INTRODUCTION
The veteran had active service from February 1962 to May
1967.
This appeal arises from a January 1991 rating decision issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Los Angeles, California, which denied the veteran’s
claim for entitlement to service connection for a mental
disorder. This case was later transferred to the VARO at
Montgomery, Alabama. In March 1997, the RO granted the
veteran service connection for PTSD and assigned a 30 percent
evaluation effective September 1990, the date of the
veteran’s original claim. The veteran continues to appeal
the assigned rating.
The Board notes that the veteran has had several pending
claims during the course of this appeal, including
entitlement to a permanent and total disability evaluation
for pension purposes which was granted by the RO in February
1997. This matter was also before the Board on two prior
occasions and was REMANDED for further development in March
1996 and January 1994. Having reviewed the record, the Board
finds that the veteran’s claim for an increased evaluation
for PTSD is the sole remaining issue on appeal at this time.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his present PTSD symptoms are
productive of a 50 percent disability evaluation. The
veteran states that he continues to experience panic attacks
several times per week and has frequent intrusive thoughts of
Vietnam.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence of record
supports granting the requested 50 percent disability
evaluation for PTSD.
FINDINGS OF FACT
1. Sufficient evidence necessary for an equitable
disposition of the present appeal has been obtained.
2. The veteran’s PTSD is presently manifest by frequent
panic attacks, intrusive thoughts, anxiety, depression, poor
judgment, insight, and problem solving ability.
CONCLUSION OF LAW
The schedular criteria for a 50 percent evaluation for PTSD
has been met. 38 U.S.C.A. §§ 115, 5107 (West 1991);
38 C.F.R. §§ 4.1, 4.7, 4.125, 4.132, and Diagnostic Code (DC)
9411 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As an initial matter, the Board finds that the veteran has
presented a well-grounded claim for an increased evaluation
of PTSD under 38 U.S.C.A. § 5107(a). That is, the veteran’s
claim with respect to the current severity of his condition
is at least plausible. Proscelle v. Derwinski, 2 Vet.App.
629, 632 (1992). The Board is also satisfied that all
relevant facts have been properly developed. Accordingly, no
further assistance to the veteran is required in order to
comply with the duty to assist him as mandated by law. Id.
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4,
Schedule for Rating Disabilities. Where entitlement to
compensation has already been established and an increase in
the disability evaluation is at issue, it is the present
level of disability that is of primary concern. Francisco v.
Brown, 7 Vet.App. 55, 58 (1994). Where there is a question
as to which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7.
The veteran’s post-traumatic stress disorder is presently
evaluated as 30 percent disabling under the newly revised
Diagnostic Code (DC) 9411 (effective November 1996). As
above, the veteran contends that his current symptoms warrant
a 50 percent evaluation under this criteria. Where the law
or regulation changes after the filing of a claim, but before
the administrative or judicial appeal process is concluded,
the law or regulation that is most favorable to the veteran
under the particular circumstances of the case will be
applied by the Board. Karnas v. Derwinski, 1 Vet.App. 308,
313 (1991).
In this regard, the revised DC 9411 provides for a 50 percent
evaluation for PTSD where occupational and social impairment
has been shown due to symptoms such as: flattened affect;
panic attacks more than once a week; difficulty in
understanding complex commands; memory impairment; impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; and difficulty in establishing and
maintaining work and social relationships. Under the former
criteria, a 50 percent evaluation was appropriate where the
veteran’s reliability, flexibility, and efficiency levels
were so reduced as to result in “considerable” industrial
impairment. Reviewing the most recent VA examination reports
for PTSD, the Board concludes that the veteran’s symptoms
meet the criteria for the requested 50 percent evaluation
under either the old or the new criteria.
The veteran’s most recent VA examination for PTSD was
performed in March 1997. The examiner indicated complete
review of the veteran’s claims file prior to undertaking the
examination. The veteran described mortar attacks in
Vietnam, with one in particular where his best friend was
killed, and loading bodies of the dead soldiers onto
helicopters for return to the United States. The veteran
reported unemployment since 1988. His current complaints
included persistent intrusive thoughts about Vietnam and
panic attacks which occurred several times per week. The
veteran gave a history of two failed marriages and stated
that he was afraid to get close to anyone. He reported
difficulty concentrating and with hypervigilance.
On examination, the veteran was appropriately dressed and
cooperative. He denied auditory and visual hallucinations.
The veteran’s affect was flat and depressed. The veteran’s
psychomotor activity was described as retarded. His insight,
judgment, and ability for abstract thought were reported as
poor. The veteran appeared anxious when talking about his
experiences in Vietnam. The examiner opined that the
veteran’s symptoms were consistent with a diagnosis of PTSD,
chronic and severe.
The Board acknowledges that the above examination did not
include a multiaxial diagnosis for PTSD pursuant to the
requirements of the American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition, (DSM-IV). However, this factor alone does not
render the examination inadequate for rating purposes. In a
previous VA examination for mental disorders in January 1995,
a multiaxial diagnosis was provided and the veteran’s Global
Assessment of Functioning (GAF) score was listed as 55
(moderate). Many of his symptoms such as flashbacks,
depression, and anxiety attacks were also reported at that
time. VA outpatient treatment reports (dated March-April
1995) show the veteran participating in therapy with
medications for sleep and depression. The veteran was noted
as increasingly irritable and withdrawn.
The veteran’s PTSD is currently manifested by several of the
required symptoms for a 50 percent disability evaluation;
specifically, panic attacks more than once per week,
flattened affect, impaired judgment and thought processes,
mood disturbances, and difficulty establishing and
maintaining effective work and social relationships. As
indicated previously, the veteran has been determined to be
permanently and totally disabled for pension purposes due to
his multiple disabilities. He has not contended that he is
unemployable solely due to PTSD. Thus, a lengthy discussion
of the effects of PTSD on his employability is unnecessary.
The Board concludes that the veteran has presented ample
medical evidence supporting his contention that his symptoms
are severe enough to warrant a 50 percent rating. In making
this determination, the Board has granted the veteran the
extent of the benefits requested.
ORDER
Entitlement to a 50 percent evaluation for PTSD is granted
subject to legal criteria governing payment of monetary
benefits.
CHARLES E. HOGEBOOM
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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